Dáil Éireann díospóireacht -
Tuesday, 25 Feb 1964

Vol. 207 No. 11

Guardianship of Infants Bill, 1963— Report and Final Stages.

Minister for Justice (Mr. Haughey)

I move amendment No. 1:

In page 5, section 15, line 54, after "case" to add "including, in particular, the means of the parent".

It will be recalled that on Committee Stage a number of Deputies expressed concern as to the possible effects of section 15. The section as it stands provides that where an infant is being handed back to its parents after being maintained by another person or in a health institution, the court can order a payment to be made by the parent of a sum of money which would be measured having regard to all the circumstances of the particular case.

Some Deputies were anxious lest this would have the effect of deterring parents from seeking to have their children restored to them because of the financial implications involved. The section as it stands provides that the court in awarding any sum of money would have regard to all the circumstances but some Deputies felt that this was not sufficient. The amendment is put down in an endeavour to meet that point of view. The court will now, under the section, have regard to all the circumstances concerned and, in particular, to the means of the parent in deciding whether or not to order that the parent shall pay a sum of money.

Mr. M.J. O'Higgins

This amendment, as the Minister has indicated, has been put down to meet a point of view expressed from these benches in the Committee Stage discussion. The amendment does meet the point of view which was put forward to a very large extent. There was a fear expressed that under the terms of the Bill as it stood in section 15 the discretion vested in the court to award costs and order payments to be made in the circumstances set out in the Bill might tend to become a kind of penal provision irrespective of the means of the parent to pay. The Minister has met the point of view we put forward that he should write into the Bill some phrase which would make it quite clear that the ability to pay was one of the paramount considerations.

I do not know whether I am, strictly speaking, in order at this stage, a Cheann Comhairle, in mentioning it but I am very disappointed that the Minister did not bring in an amendment to section 8 of the Bill to meet the points of view expressed on Committee Stage. My understanding of the position was that, while the Minister did not give an unequivocal guarantee that he would bring in an amendment, he did indicate very strongly that he would do so and that he would limit the application of section 8 to cases such as he argued on the Committee Stage, cases where it was clearly established that the surviving parent was unfit to act as guardian of the child. I think it is a very grave weakness in the Bill that the Minister has not brought in that amendment.

Mr. McQuillan

The amendment which the Minister has introduced at this stage is a slight improvement on the position but I should like to emphasise what I have already said that this Bill, particularly Part III, is loaded against the parent. While I would appreciate the Minister's difficulty in drafting amendments that would meet the wishes of people in this House and outside it, I still feel that the slant given in this Bill will not encourage people to take children out of institutions.

Our aim should be to clear every institution in this State of children and to give these children homes where there is a family and where they will be in natural surroundings and given proper care and personal attention so that their personalities can bloom and fully expand. The institutional treatment that we have in this country is something that every child who can be spared it should be spared it.

This Bill and, in particular, the concluding sections, do not give the impression that the State is more anxious to help the parent and the child towards readjustment in favour of the child rather than to secure that the State is recompensed for any expense it has incurred in the rearing and maintenance of the child while it was separated from the parent.

What I want to get across to the Minister—he knows it personally—is the idea that where a parent wishes to take out a child from an institution after a period of years the difficulties are not removed by this Bill. In fact, the difficulties look very formidable. Instead of putting difficulties in the way, to be solved by a cold individual sitting in the High Court, I suggest that these matters should be solved if possible outside of the High Court, as was suggested here, in Chambers, on the recommendation of a small group. The less publicity that is given in regard to such matters the better for the future of the child.

Sir Anthony Esmonde

Although the Minister has to a certain extent met our objections on this particular point, I do not think the amendment goes quite far enough. When speaking on the matter on Committee Stage, I envisaged that an amendment such as this would prevent a parent from taking out a child. We on these benches and Deputy McQuillan felt that it was extremely desirable that whenever possible, a child should be returned to its natural parent. The amendment introduced by the Minister meets us to a certain extent but still leaves it in the mind of the parent who will make the application that he or she may have to pay a considerable sum of money.

A child may have been in an institution for five or six years. A parent seeking legal advice, with the intention of withdrawing a child, will be told that he may have to pay a sum of money in respect of that five or six years.

The Minister has already met us in a certain way and I would respectfully suggest that he should consider fixing a period of two years as the maximum period in respect of which costs could be awarded. That would help considerably to ease the mind of applicants.

I again want to put the case of a person who may have had an illegitimate child, a person of the working class, for whom it has been impossible to support the child and the child has been maintained in an institution. It may happen that after six or seven or eight years or any other period that person may want to withdraw the child from the institution. It may have been always their intention to apply for restoration. Their legal adviser will have to tell them that it may cost a considerable sum of money. That is an impediment in their mind to their carrying out what they wish to do.

I would suggest to the Minister that he would insert a clause to the effect that the parent should not be asked to pay more than two years' maintenance for the child. He could insert words to that effect in the correct legal phraseology. He has plenty of legal advisers and he is a legal man himself. I suggest that such a provision would considerably help in getting many children taken from institutions and returned to the persons who have their interests fully at heart, namely, blood relations, their parents.

Mr. Haughey

I feel that Deputies' fears in this regard are completely unreal. First of all, the majority of the attention has been directed to section 15, although Deputy McQuillan has stated that in his opinion sections 14, 15 and 16 are loaded against the parent. This I cannot accept. Section 14 is nothing more than a simple protection of the child. It merely restricts the right of a parent to take a habeas corpus action and secure the return of the child. Any sensible view of the situation must envisage a situation arising where the parent would apply for the restoration of the child and it would not be desirable in the child's interest that the parent should be entitled as of right to have the child back.

Section 14 merely states that principle. I regard section 14 as a logical extension of section 3 of which Deputy McQuillan and others have spoken so highly. Section 3 states that the paramount consideration must be the welfare of the child and section 14 is a logical extension of that and, where the court would be satisfied that the return of a child to a particular parent might not be in its best interests, it need not make the order of habeas corpus. That is all it means. Section 16 merely says that where the parent has abandoned or deserted an infant or allowed an infant to be brought up by another person at that person's expense el the court shall not make an order for the delivery of the infant to the parent unless the parent has satisfied the court that he is a fit person to have the custody of the infant. Nobody can take exception to that.

Mr. McQuillan

Is there not a danger that the court may take the view that the child in an institution is well-fed, sheltered and housed and, on that basis, that it is better off there than out with its parents?

Mr. Haughey

No, there is a long line of decisions in the courts. The High Court always, down the decades, had a special interest in guardianship matters and by now it has built up a whole series of decisions governing these cases. In case after case the courts have laid down for themselves the criterion that where at all possible the natural right of the parent must be adhered to. That fear of Deputy McQuillan is not real because in the Kindersley case and others, time and again, the principle has been reiterated, that it is only in the most exceptional and necessary cases that the courts will interfere with the natural right of the parents in respect of their children.

Mr. M.J. O'Higgins

A new Act will now be interposed between the long line of decisions the Minister has mentioned and an application under this section, for what it is worth. I feel there is a lot of sense in Deputy McQuillan's argument that, going back to section 3, the court may take the view that institutional treatment is the best thing for the child.

Mr. Haughey

There is nothing here at all to overrule the principle laid down by the Supreme Court in the Kindersley case that it is only with the greatest reluctance that the courts will interfere with the natural right of parents to the guardianship and custody of their children.

Mr. M.J. O'Higgins

That was a decision on the natural right of the parent. Section 3 deals with the position of the child.

Mr. Haughey

There is nothing in any of the three sections, sections 14, 15 or 16, to inhibit or curtail that principle. Apart from that, the courts have all down the years always shown the utmost care to protect the natural right of the parents.

Section 15 has been criticised mainly, I think in regard to children in institutions but Deputies must not forget that it also applies to children brought up at the expense of other persons. Certainly, in that type of case at least the courts should have the authority to award some sum of money to the person who has been responsible for the maintenance and, presumably, the education of the child in the interim. It is purely a permissive section and there is nothing mandatory about it. I cannot see the courts leaning over unduly or excessively on the side of the public institution. The courts do not do that.

Mr. McQuillan

The danger is there that they will do it. The "person", as the Minister knows perfectly well, is the State.

Mr. Haughey

Yes, but fortunately or otherwise the courts do not lean on the side of the State against the individual. They never show any tendency, particularly in a matter of this kind where a parent is seeking the restoration of a child, in favour of the State or the public institution. Having said all that, I am aware of the undertaking which I gave on the Committee Stage to see if some form of words could be devised which would be, in any way, more helpful to Deputies who have expressed concern about these sections. We still have the Seanad and perhaps between now and when the Bill goes to the Seanad we may be able to devise some other formula which will go further to meet the views of Deputies who spoke on the matter. I undertake to examine that possibility in regard to sections 14, 15 and 16.

Deputy O'Higgins mentioned section 8 and I have honestly reconsidered that section in the light of criticisms made of it, but I am not convinced that we should make any change in regard to it. I think it desirable that the court should have as free a hand as possible in this regard and, as has been pointed out, the surviving parent himself or herself might wish to have a guardian appointed. In the light of that sort of case alone I think it is desirable to give the courts the widest possible authority.

Having thought it over further, I should like to put this point to the House—the risk of frivolous applications by busybodies is negligible. It will be a fairly formal procedure to apply to the court; it will be expensive and I think the court will very quickly make up its mind whether the application was of a frivolous or vexatious nature and anybody indulging in that kind of procedure will leave himself open to be mulcted for costs. On the whole, I think it is better to leave section 8 as it is but, as I have already said, we still have the Seanad which gives us an opportunity to have another look at it.

Amendment put and agreed to.

Bill, as amended, received for final consideration.

Question—"That the Bill do now pass"—put and agreed to.